Wednesday, December 30, 2009

I've been meaning to mention this Appellate Division decision affirming the dismissal of a claim against Christie's by a disappointed buyer of Star Trek memorabilia. You can read some background on the claim here. The buyer was held bound by Christie's Conditions of Sale, which in this case (1) "expressly declared that 'all property is sold as is' without any representation or warranty of any kind by Christie's or the seller" (typically notthe case for fine art auctions, which come with a warranty of authenticity) and (2) "contractually precluded" him "from pursuing the massive recovery he now demands" because "the only remedy available to him thereunder would be a refund of the sale price(s) upon return of the item(s), a limitation generally permissible in contracts for the sale of goods" (a limitation which typically does apply in the fine art context).

The court also ruled that there was no claim under NY General Business Law sections 349 and 350 because "a party seeking those remedies must charge conduct that is consumer oriented, with an impact on the public at large." Similarly, punitive damages were unavailble since "the misconduct alleged here, which arises from a private contract, does not resemble the egregious wrongdoing that could be considered part of a pattern directed at the public generally."

Tuesday, December 29, 2009

The year-in-review articles and posts have been trickling in, a number of which touch on art-law related matters. Derek Fincham has the Year in Cultural Policy, including the following on deaccessioning:

"One of the difficulties with deaccession stems from its connection to our fundamental view of art and museum governance. What is the nature of art? An art museum? Are either permanent? Can we trust the governing structures in our museums? Our inability to find common ground in crafting answers to these questions accounts for the continued difficulty. But if the arts community cannot come together and craft viable solutions to these difficulties, we are going to be left with weaker cultural institutions and risk losing more works as a result of financial difficulty."

The Boston Globe's Sebastian Smee reviews "a frankly incredible year in art," beginning with the Brandeis-Rose story ("The art world, the media, and a sizable swath of the public voiced strong opposition to the plan, and Brandeis eventually retreated - with mincing steps, it has to be said - from its original position: The museum would stay open, it promised, but it refused to rule out the possibility that art would be sold"), then "things got even weirder" with the arrest of Shepard Fairey "for graffiti-related activity" -- "embarrassing, sure - but worse was to come": Fairey's recent "admission that he had lied to a federal court judge about which photo of Obama he had based his 'HOPE' poster on. He had also destroyed evidence to cover up his lie. His lawyers dropped him. Fairey continues to do his thing, but he looks a little tarnished." Smee also mentions the controversy surrounding the Isabella Stewart Gardner Museum's expansion plans.

Another Massachusetts-centric review mentions the Fairey arrest and the Rose story ("Though the museum director was let go, the remaining staff has mounted several shows including a recent retrospective that highlighted treasures of the Rose's collection of 7,000 works, valued at $350 million before the recession. While families and businesses everywhere must also make painful economic choices, the Rose Art Museum remains on legal life support reminding patrons all art comes at a cost").

Finally, a review of the decade in Pennsylvania includes a judge's ruling "in a years-long battle that the Barnes Foundation could move its multibillion-dollar art collection to downtown Philadelphia from suburban Lower Merion."

A former payroll manager at the Brooklyn Museum (mentioned earlier here) has plead guilty to charges of embezzling more than $620,000 by making payments to phantom employees: "According to an affidavit released by the U.S. Attorney’s Office for the Eastern District of New York, Newton’s scam began in 2005 when he created a profile for a fictitious employee known as 'Brooklyn Museum' or 'Brooklyn.' From that time until July 2008, he allegedly issued 138 fictitious payroll checks, most of which were deposited into bank accounts that he controlled, including a joint bank account with his wife. Some of the checks issued in 2008, the affidavit says, were made payable to another fictitious employee known as 'ZYX.'"

At least tentatively so. The San Francisco Chronicle reports: "Most of the M.H. de Young Memorial Museum's cornerstone collection of Oceanic art will stay put under a deal that San Francisco officials have struck to resolve an inheritance dispute that threatened to have the collection dismantled. The tentative settlement ... will give the de Young clear title to 274 of 398 pieces of Papua New Guinea artwork housed at the city-owned museum - a compilation that nation's ambassador to the United States hailed as an 'unparalleled and extensive collection of masterpieces.'"

It's a complicated story. The Art Market Monitor says it "involves a dizzying number of agreements and cross-conflicts between the heirs" and, "along the way, Sotheby’s became a creditor" too. Kate Taylor took a crack at a summary in the NYT last year. The settlement seems to have some deaccession-ish aspects to it:

"John Friede had paid his brothers more than $22 million of the $30 million [he had agreed to pay them], but legal fees and interest made the shortfall around $10 million ... In April, the city agreed to sell 76 works not at the museum to help pay the Friedes' debts. Only some have been sold. Under the settlement, the balance John Friede owes his brothers will be set at $5.65 million and will be paid from three sources: John Friede's one-third share of the Pierre Bonnard painting 'Le dejeuner' that he owns with his brothers; a portion of a $3.7 million payment from his mother's estate that was to go the de Young to pay for upkeep, promotion and study of the Jolika Collection; and proceeds held in escrow from the sale of some of the works not housed at the museum ...."

I don't usually use the blog for this sort of thing, but wanted to call attention to a really terrific event that our clients Richard and Clara Serra are putting together to benefit The Family Resource Center of The Partnership for the Homeless. A bunch of great artists are participating, and it's hard to think of a more worthy cause -- looking out for the education of homeless kids. Check it out.

Monday, December 21, 2009

Newsday reports: "The former director of Long Island University's Hillwood Art Museum admitted Friday to stealing nine ancient Egyptian artifacts and pocketing $32,000 from the sale of some of them, saying he did so to seek retribution against LIU for mistreating him."

"In a November ruling, Senior District Judge Robert Propst said that Moore's paintings of football players don't infringe on any UA trademark so long as no university symbols or logos are used. However, Propst also said that ... Moore has and will infringe on the UA's copyright when he creates reproductions of his artwork that 'include any University of Alabama football uniforms on mini-prints, mugs, cups, calendars, flags, towels, T-shirts or any other mundane products.'

"Stephen Heninger, Moore's attorney, disagrees. Because Propst ruled that Moore's artwork is protected, that artwork should be able to be transferred to coffee mugs and the like. 'We think it's clear,' Heninger said. 'We own the copyright of the paintings. They're protected, so we have the right to make reproductions. We're appealing to get a clarification.'"

UPDATE: An important correction from Sergio Muñoz Sarmiento. The national championship game is Jan. 7, not the 8th.

He also likes Texas in the upset. I say the Tide rolls, by at least two touchdowns.

On Moore's appeal, he says "it seems pretty clear cut. If Moore owns the copyrights to his own paintings, and they don’t include any Tide logo or trademarks, then it seems to me he’s in the clear." I'm not so sure about that. When it comes to merchandise (t-shirts, coffee mugs, etc.), it's a much closer call.

The Randolph College deaccessioning lawsuitis over: "Lynchburg Circuit Court Judge Leyburn Mosby signed an order distributing the $500,000 bond that secured the temporary injunction that barred the sale of the art in late 2007. The bond is to be divided with $300,000 going to Randolph College. The remaining $200,000 and the interest on the bond is to be returned to the plaintiffs who raised the money in an attempt to stop the sale of four paintings from the museum."

Randolph's president issued a statement saying: "While we are pleased with this settlement, it in no way recovers all of the damages incurred by the College as the result of the injunction preventing the sale of the paintings at a high point in the art market."

The Hollywood Entertainment Museum is auctioning off items from its collection, not to buy more Hollywood memorabilia, but to preserve its educational programs. Quick, someone alert the Deaccession Police!

Aren't these items held in the public trust, to be accessible to future generations of Hollywood memorabilia lovers? The museum is a 501(c)(3) that enjoys the same tax benefits as any art museum. So why is it okay for it to sell its collection but a great crime when a museum wants to sell a work and use the proceeds for anything other than buying more art (including to keep from having to shut its doors)? If it's not the tax exemptions that convert a museum's assets to the "public trust," what is it?

"There is a long list of tax-favored treatments ... that various levels of government afford to individuals and businesses ..., without impairing or prejudicing the underlying autonomy and private nature of the beneficiaries of such treatment. For example, individuals enjoy deductions for the mortgage interest and property taxes they pay on their homes; the exclusion of ... gain on the sale of their principal residences; deductions or exclusions for retirement contributions, health insurance, and tuition; and tax credits for higher education, dependent care, and children. Government does not claim that it is thereby entitled to dictate the lifestyle, consumption and savings patterns, childbearing and child-rearing choices, furniture tastes, or college majors and courses of study, or to make any other such decisions for individuals who claim these deductions and credits."

As I've said before, no one thinks "we" own every asset of every every church, school, etc. in the country. What makes works of art any different?

Wednesday, December 16, 2009

I found this part interesting. Apparently, a limited liability company called Friends of The Met was formed to raise money for the museum. If the museum were to close, the LLC "would be repaid at least in part by the sale of the museum's assets, including its art collection" (my emphasis).

Philadelphia Weekly talks with Blake Bradford, the Barnes Foundation’s new director of education. He says: "The hang [installation of the paintings and objects] is going to be the same; the galleries are going to be the same. It won’t be the mosh pit, blockbuster experience. We’re not going to turn this place into Disneyland."

You don't see that very often. From the AP: "Police say a Pennsylvania man used a backhoe to break into a museum owned by his father -- the renowned fantasy artist Frank Frazetta -- in an attempt to steal 90 paintings worth $20 million." You also don't see many museums described as being "owned" by someone, so this is a pretty strange story all around at this point. [via]

Some would say that some would say that the museum should just sell a couple of Henry Dargers to take care of the problem.

But what I would say, first, is: Why does it have to be a couple of Dargers? We keep being told that museums have mountains of stuff in their basements, just taking up space. Why is it completely off limits to even consider selling any of that "stuff"? Museums routinely cull through their collections to identify the less essential items they can sell to raise money to buy more art (without controversy). Why is it out of bounds to wonder about the sale of those very same items (presumably not Dargers) to help a museum in financial distress?

And second, as a last resort, if it meant the difference between the museum continuing to operate or going out of business (or, perhaps, being "stolen" by the evil museum-thieves in Philadelphia), would it really be wrong to think about selling even a couple of Dargers? Apparently the museum owns all four of the unpublished manuscripts that were discovered at Darger's death ("comprising more than thirty thousand pages of text"), "approximately three thousand items from Darger's archive of ephemera and source material," and "more than two dozen paintings." If the museum ends up owning the manuscripts and archive but, say, 22 paintings instead of 25 -- if that's what it takes to keep it alive (and out of Philadelphia) -- is that such a terrible outcome? Or is it better to let them fail?

It's hard to tell from these initial reports just how serious the museum's problems are, nor do we know how far the sale of any of the art (of the Darger or non-Darger variety) would go towards solving those problems. But the attempt to preemptively rule out certain possible solutions strikes me as unwarranted.

Yesterday I mentioned Jonathan Melber's upcoming course at the School of Visual Arts. Today I see that Volunteer Lawyers for the Arts has a similar series starting in February, taught by artist and lawyer Sergio Muñoz Sarmiento. Details here.

Thursday, December 10, 2009

"The implication of the decision seems to be that, if California had extended its statute of limitations for all stolen property claims (or for all claims of stolen artwork in particular), then the claim would have survived. California can host any number of Nazi-looted art cases if it wishes - even if the point is to 'rectify wartime wrongs' and even if they require courts to review restitution decisions made by other countries. But what it cannot do is extend the statute of limitations for those claims. It's a strange result."

Jonathan Melber, co-author ofART/WORK: Everything You Need To Know (And Do) As You Pursue Your Art Career, will be teaching a class this winter at the School of Visual Arts called "Law School for Visual Artists." The course description:

"Taking a practical, user-friendly approach to legal topics for visual artists, this course will address how to protect yourself and your artwork in a way that's easy to understand. Topics will include consignments, copyright registration and the Visual Artists Rights Act, as well as basic contract-law principles that will help you better understand the legalese in art-world agreements. We will draft consignment and commission agreements, and review the common terms of gallery representation arrangements. Learn what your legal options are if things go wrong, such as damage to your work, gallery non-payment and copyright infringement."

Wednesday, December 09, 2009

Tuesday, December 08, 2009

In an interview with Sarah Douglas, David Gordon, former director of the Royal Academy of Arts in London and the Milwaukee Art Museum, has this to say about deaccessioning:

'The position of the American Association of Museums and the Association of Art Museum Directors is that it is always wrong unless the funds are used to buy new art. I disagree. Suppose you have a museum in a city that has fallen on hard times and its base of support has diminished but it still has a great collection. You wish to make sure that the museum stays open six days a week, that its artworks are being conserved and that it’s able to put on adventurous exhibitions, but you don’t have the money to do any of this. As you cut costs, you are in particular danger of weakening the conservation program, so that the fundamental function of the museum, as a guardian of works, is jeopardized. In that circumstance, it seems wrong to say, 'Well, you can’t do anything that involves the art.'"

Preliminary charges have been filed against nine employees of Drouot auction house in Paris in the stolen art case mentioned in the weekend wrap-up here. The New York Times explains that "under French law, preliminary charges give the judge more time to investigate and determine whether to send the case to trial." Mark Durney says: "Now that charges have been filed, it should be interesting to see if any other illicit art surfaces during the process of discovery."

Shepard Fairey talks to New York magazine. Among other things, he says that "since the lawsuit started, I’ve been very careful. I collaborate with photographers, or licensed photographs, or shoot my own photographs and use friends and family as models."

Monday, December 07, 2009

Bloomberg reports that "Italian police seized art work valued at more than $149 million belonging to Calisto Tanzi, founder of Parmalat Finanziaria SpA, who is on trial for fraud linked to Italy’s biggest bankruptcy." Lots more from Greg Allen, who says "there's little to warrant the term 'masterpiece' at all, and it's hard to see how to get to the EUR100 million value the police claim the stash is worth. But it makes for a neater headline."

Edelman Arts apparently got a $750,000 default judgment against Gmurzynska gallery in a lawsuit over a damaged painting, then got US marshals to seize four paintings from the Gmurzynska stand at Art Basel Miami Beach "only 90 minutes before the first VIP guests entered" -- but the matter was then quickly resolved and the works returned. The Art Newspaper has the story here.

"French police detained 12 people in a sweep of a respected Paris auction house Wednesday after finding a stolen Courbet painting worth $1.3 million at an employee's house."

Sunday, December 06, 2009

The Philadelphia Inquirer prints the comments of Barnes chairman Bernard C. Watson at last month's groundbreaking at the new site. He begins by noting that when he joined the Board of Trustees in 1999, "the foundation's finances were in shambles." He says philanthropists and foundations weren't interested in giving money to "an organization that had a legacy of expensive and distracting litigation, no credible business plan, or a governance structure that would make implementation of such a plan possible." And, he adds, "none of the people who continue to raise their voices in angry objection to moving the collection to the Parkway reached into their pockets to support us in any meaningful way in Merion."

He also says that the move "was, in fact, anticipated by Section 11 of the Barnes Foundation Indenture," which includes the following:

". . . should it for any other reason become impossible to administer the trust hereby created concerning said collection of pictures, then the property and funds contributed by Donor to Donee shall be applied to an object as nearly within the scope herein indicated and laid down as shall be possible, such application to be in connection with an existing and organized institution then in being and functioning in Philadelphia, Pennsylvania, or its suburbs."

Wednesday, December 02, 2009

An important decision yesterday from the Appellate Division on the obligation to authenticate. For the most part, the case should provide a measure of comfort to artist foundations and authentication committees, but, as we'll see below, some uncertainty remains.

The case involves two theatrical stage sets (and related material) that the plaintiff claims are works by Alexander Calder. He submitted them to the Calder Foundation for authentication in 1997. He claims he never got a response one way or the other, and that without a confirmation of authenticity from the Foundation, he cannot sell the work. The trial court granted the defendants' motion to dismiss. The First Department has now affirmed.

First, the good news for similarly-situated foundations. The panel begins by noting:

"Whether the art world accepts a catalogue raisonne as a definitive listing of an artist's work is a function of the marketplace, rather than of any legal directive or requirement. As a consequence, neither the creation of such a catalogue nor its inclusion or exclusion of particular works creates any legal entitlements or obligations" (emphasis added).

It adds:

"[A] declaration of authenticity would not resolve plaintiff's situation, because his inability to sell the sets is a function of the marketplace. If buyers will not buy works without the Foundation's listing them in its catalogue raisonne, then the problem lies in the art world's voluntary surrender of that ultimate authority to a single entity. If it is immaterial to the art world that plaintiff has proof that the sets were built to Calder's specifications, and that Calder approved of their construction, then it will be immaterial to the art world that a court has pronounced the work 'authentic.' Plaintiff's problem can be solved only when buyers are willing to make their decisions based upon the Work and the unassailable facts about its creation, rather than allowing the Foundation's decisions as to what merits inclusion in its catalogue raisonne to dictate what is worthy of purchase."

In sum, the case turns on "whether a duty is owed to plaintiff by ... the defendants that would entitle him to any of the relief [he] seeks — whether based on the Foundation's not-for-profit status, or its explicit or implicit promises or assertions, or its unique position as the sole arbiter of whether work will be included in Calder's catalogue raisonne." The panel "discern[ed] no such duty on defendants' part, and therefore no enforceable right of plaintiff to relief against them."

So far, so good for foundations that authenticate, or which are putting together catalogues raisonne: the quoted language would seem to suggest that they can reject work without worrying about getting sued. But then we come to the panel's discussion of the cause of action for "product disparagement."

The panel begins by noting that "the difficulty of applying the product disparagement cause of action to the assertions made in the present case is that plaintiff here has alleged no affirmative publication of a false statement to third persons." But, it continues, "as a practical matter, the denial of authentication is arguably indistinguishable from a direct assertion of inauthenticity." So failing to authenticate the work, or omitting it from the catalogue, is really just like affirmatively announcing to the world: "This work is not authentic. Stay away from it."

The panel acknowledges that "there is no question that adopting this approach and treating the Foundation's non-response as a publication asserting the Work's inauthenticity to the world at large would constitute a substantial expansion of the law. Yet the fact that non-inclusion in a catalogue raisonne is understood in the art world as a conclusion that the work is not authentic tends to support the application of the cause of action in circumstances such as these" (emphases added).

After taking us that far, though, the panel steps back . . . and dodges the issue: "However, we need not come to a conclusion on that point in this case because the claim must in any event fail on statute of limitations grounds." The statute of limitations for product disparagement is one year. The plaintiff submitted the work to the Foundation in 1997/98; by 2004/05, according to his own complaint, he is losing potential sales because of the Foundation's refusal to authenticate the work. Since he didn't bring suit until 2007, his claim is therefore time-barred.

The other door that was left at least partially open relates to the antitrust claim (under the Donnelly Act, New York's antitrust statute). The panel attempts to distinguish this case from the currently pending lawsuit against the Warhol Foundation, and in so doing provides a blueprint for future plaintiffs to survive a motion to dismiss:

"In holding that the complaint in [the Warhol case] successfully stated a claim for an illegal market restraint and monopolization, the district court cited a number of alleged facts: that the Board made unsolicited suggestions to owners of Warhol works that they should submit their works for authentication; that such policies as the Board has regarding authentication were inconsistently applied; that the Board reversed prior determinations authenticating works; that the Board refused to authenticate works that the Foundation had previously attempted to purchase; and that, unlike other such boards, which are composed of well qualified and well known independent experts, the Warhol Board is made up of individuals who lack experience and who are not independent of the Warhol Foundation. Plaintiff's complaint here contains virtually none of the allegations that made the restraint of trade claim viable in the [Warhol] case" (emphasis added).

I suspect this will (now) be the last complaint in this genre about which that can be said.

Saturday, November 28, 2009

Artnet reports that a Nov. 24 sale at Christie's "included a group of 15 Isfahan carpets from the collection of the Corcoran Gallery of Art, which received them in a 1925 bequest from Montana senator William Andrews Clark .... No word from the museum at press time regarding the sale, but this particular deaccession seems to have prompted few protests, if any."Remember: "once an object falls under the aegis of a museum, it is held in the public trust, to be accessible to present and future generations."

The Wall Street Journal: "Iconic cultural institutions like the Tate, the Mariinsky and the Louvre all have set up American or international 'friends groups' in the last decade, in part to cash in on donations coming from the U.S. and to allow American supporters to take advantage of domestic tax write-offs."

Tuesday, November 24, 2009

The Boston Globe had a story yesterday entitled "Putting its mission before its treasure." It's about a financially-struggling Vermont church that has decided to sell its "prized asset," a Tiffany window depicting St. John the Divine:

"The church considered selling its pews; it had an appraiser value its bell. It also has three other stained-glass windows that church records say are Tiffany designs but which are not signed and are difficult to authenticate. The St. John window with its Tiffany Studios insignia was by far the most valuable and seemed the logical choice."

My question to the Deaccession Police is: is this okay? Isn't the window held in the "public trust"? What about the pews and the bell? The church receives the same tax benefits that, according to the anti-deaccessionists, cause works owned by museums to be held in the public trust (and therefore prevent their sale). Isn't this going to cause other churches across the country to start selling off their stained-glass windows just to feed the homeless?

What gives the First Baptist Church of Brattleboro the right to sell off assets in order to serve its larger mission but prevents the National Academy of Art, or Brandeis University, from doing the same thing?

How exactly do works of art come to be held in the public trust? What is the mechanism? If it's not the tax benefits, what is it?

Courthouse News Service: "An Indian art dealer says it paid Christie's more than $800,000 for 29 pieces of art, which the auction house failed to deliver and now is threatening to sell to someone else."

More from The Art Market Monitor, including a statement from Christie's ("Christie’s finds this complaint completely meritless. We have been seeking to recover a significant debt from an Osian-related party for more than one year") and a link to the complaint.

Monday, November 23, 2009

"This paper investigates the impact of equity markets and top incomes on art prices. ... [W]e demonstrate that ... equity market returns have a significant impact on the price level in the art market. Over a shorter time frame, we also find empirical evidence that an increase in income inequality may lead to higher prices for art .... Finally, the results of Johansen cointegration tests strongly suggest the existence of a long-term relation between top incomes and art prices."

Friday, November 20, 2009

"[T]he cases appeared to diverge as to three fundamental questions: (1) Is a photograph of a copyrighted work a derivative work at all? (the 'Definition Question'); (2) Must such a derivative work exhibit a higher level of originality in order to qualify for copyright protection? (the 'Originality Question'); (3) Must the creator of such a derivative work obtain separate specific permission to register his or her copyright, over and above the permission required to create the derivative work? (the 'Permission Question').

"The Seventh Circuit explicitly declines to answer the first of these questions in its Schrock reversal, but by clearly answering 'no' to the other two, the new ruling greatly reduces the significance of the Definition Question. If a derivative work need not meet a higher originality threshold and need not obtain separate permission to register, it really should not matter very much, in most cases, whether the photo at issue is deemed a derivative work of its copyrighted subject or not."

UPDATE: More from the folks at the Harvard Journal of Law & Technology.

Tuesday, November 17, 2009

The Houston Chronicle: "A jury Monday disappointed the daughter of philanthropist and oilman Alfred Glassell Jr. by ruling that he was neither incapacitated nor unduly influenced when he gave the bulk of his half-billion dollar estate to charity [including the Museum of Fine Arts, Houston] and not to her."

The Delaware News Journal: "A former Winterthur Museum employee voluntarily turned himself into Delaware State Police ... after a theft investigation revealed he had spent more than $100,000 of the museum's money."

Saturday, November 14, 2009

Via The Deaccessioning Blog. First, it seems Assemblyman Brodsky (of the Brodsky Bill) recently came and talked to the Art Law Society at Cardozo Law School. You can read an account of the visit here. The Deaccessioning Blog's take: "Reading Brodsky's thoughts gives one hope that he's finally realizing the economic severity faced by museums and art institutions, and if the Brodsky bill restricts the use of funds acquired through deaccessioning to only the purchase of new works, museums will face dire financial situations which will force them to lay-off staff in droves, not to mention lower the academic and aesthetic design and implementation of their planned exhibitions."

Second, there is this quote, from a Time magazine report on some deaccessioning at University College London: "To be sure, not everything in a museum's collection is worth keeping, let alone putting on display."

Friday, November 13, 2009

From the AP: "Thieves stole a valuable artwork by Edvard Munch from an Oslo art dealer in the latest of a string of art heists targeting work by the famous Norwegian expressionist, police said Friday. One or more thieves stole [the lithograph] from Nyborgs Kunst in downtown Oslo after smashing one of the dealership's windows with a rock."

"Purity police chief Tyler Green would prefer that we not see this show. I don't know Dakis Joannou and am not likely to be invited to his house. I do know about his collection and am grateful it will be on view to the public.

"About those ethical problems: I have them with museums featuring trustee collections only when the collections are mediocre. ... Joannou's collection is remarkable. I want to see it and don't care whose board he's on.

"There is no rule against museums devoting shows to the work of a single collector. If there were, that rule would be made to be broken. Yes, the rich and powerful are involved in museums. Those for whom this information is a shock and an outrage are too pure (and rigid) to live in the world."

UPDATE: Paddy Johnson has "the sinking feeling this story is turning into a New York Museum Director witch hunt": "I can’t help but feel that the ultimate goal of constructive criticism is getting lost when there are bloggers seeking out scandal we’re not even sure exists." And in the comments, Peter Zimmerman adds: "I don’t see the weight of the ethical charge that Tyler Green is championing. I understand that there are complications with the insider-ness– and yes, that really should have been and should be addressed. Even so, it’s as if Green is acting like a warrior on a vendetta against the NY institution, and I’m not sure where it’s coming from. I just hope that the sensationalism of some of the writing about this subject tones down. And yeah, I’m excited for the show. I’ve wanted to see this collection for years, so in terms of serving a public, NuMu got that one right!"

Non-profit lawprof Susan Gary says "in my view, the benefits of this show outweigh the conflicts. It sounds like these works of art ... will be of great interest to lovers of modern art." She adds:

"As I read the [New York Times] article, I wondered where the conflict was. Giving the public a chance to view works of art held in a private collection seems like a good idea to me. However, as someone who does not collect art, I had not realized that a museum showing of a private collection will increase the value of those pieces of art. The value of a museum show is of particular importance for modern art, because a show indicates that the pieces are considered 'museum worthy.' So Mr. Joannou's collection will likely increase in value as the result of the show. There is no indication that he plans to sell any of the art anytime soon, but if he does sell some pieces at some point, he may benefit financially from the show."

Or not. As Saltz says, "it is a joke ... to think that Joannou’s collection will increase in value after being shown here. If anything, using three floors of the New Museum will overexpose the art and decrease its value." Put another way, there isn't any doubt that this collection is already "museum worthy."

Report from the New York Times here. According to Sergio Muñoz Sarmiento, in granting the request Judge Hellerstein said he had "never seen anything like this" and described Fairey’s conduct as a "serious transgression" -- but added that (like a lot of people) he wants "this case to be decided on the merits."

Saturday, November 07, 2009

I've been meaning to mention the recent NY state court decision dismissing a claim by a collector who bought a Julian Schnabel painting for $380,000 from a dealer who allegedly said it was worth "at least $500,000" when its true market value "was no more than $110,000." (Among other things, it had sold "months earlier" at Philips for $156,000 (against an estimate of $60-80,000).)

The decision proceeded on basic caveat emptor grounds. "A party is not justified in relying on any alleged misrepresentations if the facts were not peculiarly within the other party's knowledge and the party had the means to discover the truth by the exercise of ordinary intelligence." "Seung does not allege that she made any effort to ascertain the value of the painting prior to its sale." "Seung alleges nothing more than a relationship of art buyer and art seller, which does not rise to the level of a special realtionship [required for a negligent misrepresentation claim]." "Seung could not have reasonably relied on statements regarding the painting's value when she made no effort to independently ascertain its value."Greg Allen comments: "if Seung's case is meaningful, it's only as a reminder to collectors to do their own damn homework; the NY Supreme Court determined that art advisors and even dealers are not 'experts,' and their opinions are just sales patter which constitutes, at best, 'non-actionable 'puffery'...on which a sophisticated commercial entity could not reasonably rely."

Though it comes in the fairly narrow context of a motion for leave to amend his counterclaims, there is some language in a recent decision in the lawsuit that would seem to be pretty devastating to Halsey Minor's overall case against Sotheby's. First, the court rejected the idea that the alleged non-disclosure could have injured Minor in any way:

"Minor does not allege that ... the paintings were auctioned at an inflated price because of the failure to disclose the security interest. To the contrary, because the paintings were sold [to him] at auction, Minor set the price for the paintings. . . . As explained above, the allegations in the proposed counterclaim do not support an inference of any connection between Sotheby's conduct and any actual or potential damage to … Minor… [B]ecause Minor pleads no facts to support an inference that Sotheby's security interest affected the value of the paintings, he fails to identify how Sotheby's failure to disclose this interest was material."

The court also rejected the notion that Sotheby's had fiduciary duties to Minor in connection with the sale:

Thursday, November 05, 2009

Rebecca Tushnet has a good summary of the district court decision (mentioned earlier here) in favor of Daniel Moore in his lawsuit with the University of Alabama. She says "the Tiger Woods case is so on point that quoting big chunks of it got the court basically where it needed to go."

I've linked on anumberofoccasions to Peter Hirtle's thoughtful commentary on the Brodsky bill and related issues. Peter's now co-authored a new book entitled Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums, which I'm sure is well worth checking out. Read more about it (and download a PDF copy if you want) here.

From the Detroit Free Press: "A renowned sculptor and Holocaust survivor who spent the last 37 years as artist-in-residence at Orchard Lake St. Mary's prep school is engaged in a bitter feud with school officials over who owns more than $2 million in artwork at the campus. Marian Owczarski, 76, said in a lawsuit filed Oct. 29 in Oakland County Circuit Court that many of the 1,800 pieces of sculpture, paintings, metalwork and stained glass on display at the campus' Galeria are from his private collection."

Tuesday, November 03, 2009

In my initial post on the University of Alabama's lawsuit against sports artist Daniel Moore, I said: "I make Moore a two-touchdown favorite to win." Well, three years (and several judges) later, Moore has won at the district court level. In granting his motion for summary judgment, however, the court made it very clear that "this court is a way station on the route to appellate court(s)" and said it would certify its rulings for immediate appeal under Rule 54(b).

Monday, November 02, 2009

"for example, the metropolitan museum says that it possesses 5 million objects. now how many of these are on display? 20,000? so in what sense is the work 'viewable'? it's like - correction: it is - a massive bunker of art, a miser with a stashed hoard of useless gold. the point isn't to display the art; it's to segregate it or insulate it, to assert its priceless uniqueness by, um, burying it forever etc."

From the UPI: "The daughter of a late Texas oil pioneer claims lawyers coerced her father into cutting her share of his estate and convinced him to give it to charity instead. Curry Glassell ... claims in a lawsuit her father, Transcontinental Gas Pipe Line Corp. founder Alfred C. Glassell -- who died at age 95 in 2008 -- was sick and possibly demented when he changed his will at age 87 to give more to Houston arts. She alleges lawyers for the Museum of Fine Arts, Houston, pushed him to make the change."

Wednesday, October 28, 2009

One of the strange features of the strict anti-deaccessioning position, it seems to me, is the whole notion of the "public trust." How is it, exactly, that works owned by museums comes to be "held in the public trust" such that they can never be sold (except to buy other art)? What is the mechanism? It is sometimes suggested that this is a function of the favorable tax treatment museums receive: because museums are exempt from property and income taxes, and donors get tax deductions for contributing to them, the "public" therefore is the true owner of the art. I've never really understood that argument. There are lots of other entities that get the same tax benefits -- churches. private schools and universities, hospitals, etc. Does the public own the MRI machines at the hospital? If a university decides to shut down the sociology department, should we step in and say, "Hey, wait a minute. That department was held in trust for us. You can't just get rid of it like that"? Does every asset ostensibly held by every non-profit really belong to us? And if not, what makes art different? How does it come to be "held in trust" when other, similarly-owned assets are not?

But if tax benefits are not enough, what about a bailout? The New York Times ran a little piece earlier this week that began:

"Many of the world’s biggest banks — and biggest recipients of government bailouts — have some of the largest collections of art. Some of the works, including abstract pieces and old masters, are hanging in hallways or boardrooms. But much of it is packed away in storage. The art owned by financial institutions should get out more — at the least to give the taxpayers, who have been so generous with the financial sector, an aesthetic return."

Lee Rosenbaum asks former Cleveland Museum director Timothy Rub about the decision to use (with court permission) certain acquisition-specific funds to help complete the museum's expansion project. He says:

"There are legal means that have been in place for a long time to ask courts to determine whether or not funds that have been contributed for one purpose can be utilized ... for another purpose. There are legal mechanisms and a significant body of law that leads to this.

"Secondly, I should say that the board of the Cleveland Museum of Art is a tremendously responsible and resourceful group of people who are fiduciaries for the institution. And it's their responsibility to make thoughtful and prudent fiscal decisions on behalf of the institution. I think the trustees discharged their responsibilities extremely well. I really do."

Tuesday, October 27, 2009

I mentioned, after the probate court hearing earlier this month, that it was a little unclear where things stood in the Rose Museum lawsuit. It seemed, at the time, that it was being reported as something of a victory for the plaintiffs. ARTINFO.com, for example, headlined their piece: "Judge Lets Rose Museum Suit Stand."

But now comes a story in the Brandeis Justice that suggests that the only part of the suit the judge let stand is the part that Brandeis agreed could stand -- i.e., the plaintiffs could sue over their own donations to the museum, but they have no standing to challenge the university's decision to sell art generally, or to close the museum. The university's lawyer says "the case is now limited to the plaintiffs' ability to control their own donations or those of their ancestors to the Rose. 'The court ruled that the plaintiffs have no right and standing to represent any donors other than themselves or their ancestors, and that is all that's left now for the plaintiffs,' he said." He added that "Brandeis never had any intention of selling any artwork donated by any of the plaintiffs or the estates that they represent."

Friday, October 23, 2009

An interesting piece inside Inside Higher Ed by former Northwestern dean Rudolph Weingartner, who describes himself as "a lifetime 'consumer' and supporter of the arts." He acknowledges "a significant role for art museums on higher education campuses," but says:

"[W]ith quite special exceptions, I see a very small pedagogic function for colleges and universities to own works of art, especially given the current cost and value of so many of them. ... To be sure, the provisions of deeds of gift must be scrupulously observed; but assuming that to be the case, let them sell their works of art if the funds thus gained will better serve the institutions’ educational mission."

Referring to the "task force formed by arts groups to figure out ways to avoid the next Brandeis," he also notes that such studies tend to turn into preaching-to-the-converted affairs:

"Members of the task force, make sure, ... that you are not just talking to yourselves. You are looking for ways to relate A to B; there must thus be strong representation from both poles. As announced, the organizations participating in the task force are mostly from the Category A: the art museum community. I strongly recommend that it also include not only representation from the art history and studio art departments, but knowledgeable people who have thoughts about how to involve art museums in educating students who are not primarily concerned with the arts."

Thursday, October 22, 2009

ContractsProf Blogger Jeremy Telman on a report that Sotheby's is refusing to provide government regulators with information on bonuses paid to its executives on the ground that Christie's might use the info to steal the executives away. [via]

"The Board of Regents and Education Department should stop trying to micromanage cultural institutions in the state and instead simply require that the governing boards of those institutions operate according to best professional practice and with the mission of the institution in mind."

Wednesday, October 21, 2009

Prompted by the latest in the Shepard Fairey-AP lawsuit, Columbia lawprof Tim Wu presents Fair Use 101 over at slate.com. It's useful overview, but, as I've said before, I don't think anyone has any idea whether Fairey's poster was a fair use. Take a look at Wu's piece and see if you disagree.

The LA Times: "Richard L. Weisman, the noted art collector who made news recently when he decided to forgo a multimillion-dollar insurance policy for stolen art, had some critical words for the LAPD detectives investigating his case. 'Maybe if they would do their job … and spent some time looking for the art instead of being accusatory of the person who had it stolen, they might actually find it,' Weisman said."

"By claiming to have forgotten at first which photo he had worked from, did Fairey undercut his case in his own suit against AP? Fairey argues that he transformed the original image sufficiently to qualify for fair use protection .... But if the transformative process didn't leave enough of an impression on him for him to recall what picture he was working from, how transformative could it be? How long did it actually take? A few minutes? A few days? Surely if you work with a photo for a few days you remember it. But if the changes you made to the image only took a few easily forgotten minutes, or even an hour, then does that really qualify as a transformation?"

Tuesday, October 20, 2009

Daryl Lang of Photo District News has a good roundup of Shepard Fairey-AP lawsuit developments. The AP says Fairey "has now concocted another story." Fairey says the AP is "diverting the debate from the central question in this case, which is whether he transformed the Mannie Garcia image into a work of art, which he has."

"Barnes’ original bequest might have forbidden the move, but the result of his restriction, 60 years after his death, was the closing off of a multi-billion dollar collection of art to the wider public, strife between the Foundation and its neighbors, and a threat to the very existence of the Foundation itself. Isn’t it at least arguable that satisfying much of Barnes’ obvious intent — precisely how the art is housed and shown — while making it accessible to the world in a location where it is welcome is a reasonable effort to accommodate what he would have wanted? And isn’t it appropriate that we have institutions like courts to decide [between] that reasonable argument [and] the opposing one (Barnes stated in his bequest the collection should never be moved, so it should never be moved, even if there are circumstances now that he did not anticipate and we could not predict his reaction to)?"

Saturday, October 17, 2009

The New York Times: "Lawyers for the visual artist who created the famous 'Hope' poster of Barack Obama have acknowledged that he lied about which photograph he based the poster on and that he fabricated evidence in an effort to bolster his lawsuit against The Associated Press, according to a statement released by The A.P. on Friday night" (emphasis added).

The AP's general counsel also says "Fairey’s counsel informed the AP that they intended to seek the Court's permission to withdraw as counsel for Fairey."Remember that in their answer to Fairey's complaint, the AP argued that he "deliberately misrepresent[ed] the source of the Infringing Works in [the] Complaint" in a "misguided effort to argue that Fairey made more substantial changes to the photograph ... than he actually did." Related post here.

As Bruce Boyden said way back in February, when this issue first came up, "it just plain looks bad to have a misstatement like this in the complaint."

UPDATE: Boyden reacts here: "It looks even worse if you destroy evidence to cover it up. And it looks even worse than that if you manufacture evidence. All for very little benefit. Fairey’s behavior here reminds me of insider trading cases where some billionaire risks prison in order to avoid a loss of $20,000. It’s also too bad for us copyright professors who were interested in the doctrinal issues here. I can’t see this case going much farther, and even if it does, the chances we’ll get a clean holding on fair use, copyrightability, or substantial similarity seem thin."

Ann Althouse says: "The copyright issue itself should remain the same, and it's an important one indeed. It's a damned shame that the banner for expansive fair use is being carried by someone who was dishonest and who tried to play the legal system. Why is he admitting his deception now? Presumably, he knew the manipulations would come to light one way or the other, and it was a strategic decision to reveal it this way."

Jim Johnson: "I still think that Fairey - without the lies - might well have won the fair use case .... After all, it was not even clear that [the AP] controlled rights to the relevant image, since it was taken by a free-lance photographer. Maybe Fairey thought some bluster might keep the whole mess out of court. Who knows? The lesson? Don't try this at home. I suspect, and HOPE, that the judge in this case will throw the book at Fairey for his shenanigans."

Daryl Lang of Photo District News: "Fairey’s admission resolves one of the strangest elements in the suit. Despite obvious evidence to the contrary, Fairey repeatedly cited the wrong AP photo as the one he used ...."

UPDATE 2: Sergio Muñoz Sarmiento: "Aside from the fact that he only strengthened the image of artists as clowns and buffoons in the eyes of judges and lawyers, Fairey’s recent actions could earn him serious consequences."

Rebecca Tushnet continues to do heroic work tracking the Renoir Wars. The latest: plaintiff's application for $340,000 in legal fees was denied. Says Tushnet: "Any bets on whether plaintiff will appeal? Any estimates on total cost of this litigation to the parties--merely an order of magnitude greater than the damages, or two orders?"

Paddy Johnson gives us the Cliffs Notes version of a recent KCRW piece on what she calls "the so-called new Frida-Kahlos." Her bottom line: "I suppose my deepest annoyance with this story is that it embodies the kind of false myths that create art world controversy where there is none. Resting one’s case on the fallacy of experts 'who haven’t seen the work in person' isn’t an argument for its legitimacy. It’s an argument meant to discredit the expert. But what kind of specialist flies to examine obviously fake documents? It’s like accusing an Anne Frank expert of malpractice for failing to fly to Germany to examine the long lost chapter about her iPod. There’s no point."

"He had an excellent eye and a sharp mind, but unlike other private collectors who founded their own museums—Isabella Stewart Gardner, J. P. Morgan, Duncan Phillips—he was not a good institution builder. As a result, only 50 years after his death, the Barnes stood at the brink of insolvency. It was saved only by the intervention of the Philadelphia establishment ..., on the understanding that the collection, whose worth is estimated at more than $6 billion, would be moved to new premises in the city's museum district."

Philadelphia Inquirer culture reporter Stephan Salisbury told a similar story last week -- the Barnes was saved, not stolen.

A cryptic little report in the Boston Globe on yesterday's hearing on Brandeis's motion to dismiss the Rose lawsuit. The headline is "Brandeis agrees to delay sale of artwork," and the article notes that the motion was denied -- but then it goes on to say that "the university agreed it would not sell any of the artwork donated by the plaintiffs" (as opposed to all artwork at the museum) and "to give the attorney general a 30-day notice and an opportunity for review if it decides to sell any artwork donated by others" (which is something it would probably want to do in any event).

A development in last month's high-profile Los Angeles Warhol theft. The Seattle Times reports that the collector has canceled his $25 million insurance claim for the 10 pieces. He "realizes some people might view it as strange for him to walk away from so much money. But, he says, he simply couldn't stand the thought of insurance investigators poring through his personal records and interrogating his family and friends before he stood any chance of collecting."

Monday, October 12, 2009

The Boston Globe has the latest twist in the (alleged) Pebble Beach art theft: "Investigators, who previously identified the alleged victims, Dr. Ralph Kennaugh and Angelo Benjamin Amadio, as suspects in the theft are considering the possibility the doctor was a victim of Amadio, a spokesman for the Monterey County Sheriff’s Office said yesterday."

The Art Market Monitor says that seems "unlikely": "Given what is known about the art, the theft and the behavior of the victims, it would seem logical to conclude that this was a fairly straightforward burglary that gained dimension in the telling and re-telling. We’re left with a stalemate as a face-saving measure."

Thursday, October 08, 2009

As a follow up to Peter Friedman's excellent response below, here's a question for the folks who are outrageously outraged by the move of the Barnes (and I hasten to add that I thought the Barnes should stay put):

What if Barnes's Will had provided that the works were to be exhibited in Merion for exactly 50 years -- and then were to be burned in a big bonfire?

Should we honor donor intent in that case?

Or can we agree that sometimes the public interest trumps the donor's intent?

(The Art Market Monitor has been asking a version of this question for some time now.)

In the comments to a post by Peter Friedman discussed here, Barnes-move-protester -- and one of the main talking heads in The Art of the Steal -- Nick Tinari says Friedman's "view of the law is naive at best." Friedman responds:

"I guess you want an utterly rigid interpretation, entirely void of context, of words written by a guy who died 60 years ago to control what’s to be done with several billion dollars worth of art even if that means serious restrictions on access to the art.

"Me? I’ll take a pragmatic solution that preserves a heck of a lot of Barnes’ stated desires, takes into account the interests of art lovers, the public, the neighbors of the Barnes Foundation, and the fact that it really isn’t entirely clear what the guy would’ve intended under present circumstances.

"And did I mention that the guy has maintained almost exclusive control from the grave of several billion dollars worth of the world’s culture that he’d keep people away from during his life by denying their requests to see the art with letters signed by his dog?"

The Philadelphia Inquirer editorial board is thrilled with the new Barnes design:

"In a substantially larger building ..., the paintings of Renoir, Cézanne, Matisse, and other masters will be accessible to millions of visitors. That would be impossible at the Barnes' leafy suburban location, where visitors were limited by court orders resulting from battles with neighbors over traffic concerns.

"Since it was the Barnes' isolation that helped trigger money woes that led museum leaders to explore moving, the city location should bode well for the museum as a going concern.

" . . . At the same time, there is no mistaking the aim of architects Tod Williams and Billie Tsien to re-create Albert C. Barnes' former mansion. That's in keeping with pledges to preserve the unique artwork displays dictated by Barnes . . . .

"Will the design silence critics of the move, who objected to a Montgomery County judge's ruling in favor of a more flexible interpretation of Barnes' bequest? That's probably asking too much. But the plan's obvious respect for Barnes' legacy - for his idiosyncratic view of how art should be displayed and appreciated - should reassure supporters of the move."

Brooke Astor's son was convicted of stealing from her this afternoon. NYT story here. He was found guilty of 14 of the 16 counts against him. One of the two he was not found guilty of was a grand larceny charge stemming from the sale of a Childe Hassam painting.

The Art Law and Copyright and Literary Property Committees of the New York City Bar Association, together with Columbia Law School's Kernochan Center for Law, Media and the Arts, are presenting a program entitled "Lost and Found: A Practical Look at Orphan Works," Oct. 20, 6-8pm, at the Bar Association, 42 West 44th Street. Details here.